A civil liability law publicationfor officers, jails, detention
centers and prisonsISSN 0739-0998 - Cite this issue as:2009 JB September (web edit.)Click here to view information
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Access to Courts/Legal Info

An inmate failed
to show an unconstitutional denial of his right of access to the courts.
He had approximately three months to prepare the petition in question,
and was granted unimpeded daily visits to the law library for over a month
before the library temporarily closed. While his work was alleged to be
on a disk in the closed library, the prisoner did not claim that he sought
assistance to get the disk back from the library. Howard
v. Webster, #08-3956, 2009 U.S. App. Lexis 16355 (Unpub. 7th Cir.).

Diet

A prisoner failed
to show that prison officials were deliberately indifferent to a purported
risk to his health posed by his diet and the failure to provide him with
requested dietary supplements. The prisoner claimed both that his vegan
diet provided was nutritionally inadequate, and that, as a follower of
the African Hebrew Israelite religion, he should have been given supplements
considered to be "religious necessities": including blackstrap
molasses, sesame seeds, kelp, brewer’s yeast, parsley, fenugreek, wheat
germ, and soybeans. The prisoner failed to refute the prison's assertion
that providing the supplements would have involved security risks. The
appeals court ruled, however, that the prisoner's claims concerning strip
searches should have been allowed to go to a jury, since there was evidence
from which it could be found that the searches were conducted with the
intent to harass. Mays
v. Springborn, #05-3630, 2009 U.S. App. Lexis 15749 (7th Cir.).

Disability Discrimination: Prisoners

A prisoner failed
to show that he had been subjected to disability discrimination and violations
of his First,
Eighth, and
Fourteenth Amendment
rights because he has AIDS. While he claimed that his family was denied
a contact visit because of his medical condition, that "disparaging"
remarks were made about his condition, and that he was otherwise subjected
to prejudice, discrimination, and retaliation, he failed to allege sufficient
specifics, as opposed to "theories and conclusions" to enable
a court to find actionable discrimination. Lopez
v. Beard, #08-3699, 2009 U.S. App. Lexis 13403 (Unpub. 3rd Cir.).

First Amendment

While the plaintiff
inmate asserted that false disciplinary reports, for which he was sanctioned,
were filed against him in retaliation for his use of the grievance system,
he produced no evidence of this except for the timing of the discipline,
and did not show that his filing of grievances was a motivating or a substantial
factor in the decision to file three misconduct reports against him. The
defendants presented evidence that they had legitimate penological reasons
for the filing of the reports. Toussaint
v. Good, #08-3751, 2009 U.S. App. Lexis 14991 (Unpub. 3rd Cir.).

An inmate accused
prison officials of violating his First
Amendment rights by retaliating against him for writing a pamphlet
that encouraged other prisoners to engage in work stoppages. Such work
stoppages, the court stated, were deliberate disruptions of prison order,
and restrictions on prisoners' rights to organize and petition were reasonable
when inmate grievance procedures were available. Advocacy of such work
stoppages were not entitled to First Amendment protection when less disruptive
means of pursuing grievances were available. Pilgrim
v. Luther, #07-1950, 2009 U.S. App. Lexis 14588 (2nd Cir.).

A prisoner claimed
that subjecting him to a disciplinary hearing for using vulgar or indecent
language in a note mailed to opposing counsel violated his First
Amendment rights. Rejecting this claim, a federal appeals court found
that the note, which was written on toilet paper, resembled a threat and
showed a "completely unjustified" disrespect for authority. It
used "unacceptably vulgar" language that would not be tolerated
in the free setting. Imposition of discipline for writing the note helped
correct behavior that would prejudice the prisoner when he left prison.
Morgan
v. Quarterman, #07-41064, 2009 U.S. App. Lexis 12325 (5th Cir.).

While book publishing,
since it could result in the payment of royalties to the prisoner, did
constitute a "business activity" under California law, the court,
without further evidence, could not determine that a decision barring the
prisoner from publishing his book furthered a substantial or important
governmental interest unrelated to the suppression of his First Amendment
expression. Further proceedings were therefore ordered on his First Amendment
claims. Bretches
v. Kirkland, #07-16022, 2009 U.S. App. Lexis 11750 (Unpub. 9th Cir.).

Foreign Prisoners

A Mexican citizen
convicted of murder could not show that he had a right to relief based
on officials' failure to advise him of his rights, under the Vienna
Convention on Consular Relations, to consular notification and assistance.
The prisoner based his claim on a 2005 Presidential Memorandum that directed
state courts to give effect to a 2004 decision of the International Court
of Justice (ICJ) concluding that the United States had violated the rights
of 51 Mexican nationals then on death row, including the petitioner, by
failing to comply with the Vienna Convention. The U.S. Supreme Court subsequently
rejected claims similar to the petitioner's, and held that neither the
Presidential Memorandum nor the ICJ decision preempted state procedural
limits on filing successive habeas corpus petitions. The prisoner was barred
from raising the issue involved since he had previously done so and had
been denied relief on the merits of the claim. In
re Martinez, #S141480, 2009 Cal. Lexis 6016.

Mail

****Editor's Case Alert****

Massachusetts inmates
challenged a state regulation that banned their receipt of sexually explicit
publications or publications featuring nudity, as well as a correctional
policy against displaying such materials in their cells. Rejecting the
plaintiffs' First
Amendment claims, the federal appeals court found that there was a
rational connection between legitimate governmental interests and the means
used to further them. Prison security concerns supported the cell display
policy. Josselyn
v. Dennehy, #08-1095, 2009 U.S. App. Lexis 12272 (1st Cir. Cir.).

Medical Care

A federal appeals
court upheld a jury's verdict for defendant prison physicians and a prison
health provider on Eighth
Amendment claims arising from a prisoner's treatment for the Hepatitis
C Virus (HCV), but ordered clarification on why the trial court had dismissed
the prisoner's state medical negligence claim, which required a lower standard
of proof than his federal constitutional claim. Doe
v. N.J. Dept. of Corrections, #07-3189, 2009 U.S. App. Lexis 15130
(Unpub. 3rd Cir.).

A prisoner contended
that prison doctors misdiagnosed a thyroid mass and improperly provided
overly-invasive treatment (surgery) for what turned out to be a non-malignant,
benign cyst. The doctors were properly granted summary judgment on an Eighth
Amendment claim, as they were not shown to have acted with a "culpable
state of mind" amounting to deliberate indifference to the prisoner's
serious medical needs,. even if the misdiagnosis was allegedly medical
malpractice. Parker
v. Gosmanova, #08-6273, 2009 U.S. App. Lexis 14870 (10th Cir.).

After a prisoner
died of cryptococcal meningitis, an autopsy showed that he suffered from
an undiagnosed case of HIV/AIDS that rendered him susceptible to the disease
that killed him. Summary judgment was upheld for defendant state correctional
officials who were not shown to have had any reason to know or believe
that the prison medical staff was not adequately treating the prisoner.
Discovery in the case was properly limited to non-privileged documents
concerning the allocation of resources, medical costs, and documents mentioning
the deceased prisoner. The plaintiff's request for 26,000 documents that
the Delaware Department of Corrections had furnished to the U.S. Department
of Justice during a federal investigation of state prison conditions was
overbroad. Estate
of Chance v. First Correctional Medical, Inc., #08-4220, 2009 U.S.
App. Lexis 13417 (Unpub. 3rd Cir.).

While the plaintiff
prisoner established that he objectively had serious medical needs, he
failed to show that the defendants acted subjectively with deliberate indifference
when they purportedly delayed in diagnosing and treating his injured knee,
treated him as mentally unstable, and failed to provide proper medication
for high blood pressure. He failed to show more than mere negligence, which
is inadequate to establish federal civil rights violations. Barnes
v. Martin County Sheriff's Dept., #08-10785, 2009 U.S. App. Lexis 12042
(Unpub. 11th Cir.).

Medical Care: Dental

While a prisoner
claimed that a prison dentist acted with deliberate indifference and failed
to treat an abscess in his mouth, the evidence showed that the dentist
found no infection or abscess during an examination of the prisoner's teeth
and gums. The court found no evidence from which it could conclude that
the dentist should have known that the prisoner would develop an abscess
and provide treatment to prevent it. The court also rejected a claim that
the dentist had used excessive force during the examination, or retaliated
against him for filing a grievance against him. Sands
v. Cheesman, #08-15513, 2009 U.S. App. Lexis 15941 (Unpub. 11th Cir.).

Prison Litigation Reform Act: Exhaustion of
Remedies

Further proceedings
were ordered in a case where a federal trial court dismissed a prisoner's
lawsuit over claims that prison officials beat him during a lockdown, and
then used threats to prevent him from filing a grievance, based on his
supposed failure to exhaust available administrative remedies, as required
under the Prison Litigation Reform Act, 42
U.S.C. Sec. 1997e(a). The prisoner did send a complaint to the Internal
Affairs division of the prison, but did not file an administrative remedy
form, but the appeals court noted that the trial court did not address
evidence that the prison's procedures converted all inmate complaints regarding
the lockdown into administrative remedy forms, or evidence that the prison
interfered with his use of the grievance system. Baez
v. Fauver, #08-2777, 2009 U.S. App. Lexis 13692 (Unpub. 3rd Cir.).

Prisoner Assault: By Inmates

The estate of a
prisoner murdered by another inmate failed to show that county officials
acted with deliberate indifference to the safety of the murdered prisoner.
The county's booking policy did not approve of the housing of violent and
nonviolent prisoners together, but instead mandated that incoming prisoners
be classified as high risk or low risk after an intake interview. High-risk
prisoners were then housed in a separate area, in order to separate out
violent offenders. There was no evidence that the county had any notice
of the purported inadequacy of this policy. Moyle
v. Anderson, #08-3730, 2009 U.S. App. Lexis 15120 (8th Cir.).

A prisoner in protective
custody claimed that a warden acted with deliberate indifference when,
after Hurricane Katrina, he was transferred to a field at another facility,
where he was placed with the general population and attacked by other prisoners.
The appeals court ordered limited discovery to focus on the issue of qualified
immunity for the warden, and specifically on the warden's knowledge of
facts from which he could reasonably conclude that an excessive risk of
harm was present. Morgan
v. Hubert, #08-30388, 2009 U.S. App. Lexis 14355 (Unpub. 5th Cir.).

A prisoner who presented
evidence establishing a "tangible threat" to his safety, who
also claimed to have spoken directly to certain prison officials about
the threat before he was attacked by another prisoner could proceed with
his lawsuit on a failure to protect claim. Prison officials denied that
the prisoner told them about the threat, but this merely created a disputed
issue of fact, which could not be decided on a motion for summary judgment.
There was also a disputed issue of fact as to whether the level of human
waste in the prisoner's cell rendered it uninhabitable. Morris
v. Ley, #08-2549, 2009 U.S. App. Lexis 13588 (Unpub. 7th Cir.).

Prisoner Assault By Officers

Trial court did
not act erroneously in determining that an officer did not use excessive
force against a prisoner in an incident in the shower and that officers
did not use excessive force against him in an incident in an infirmary
cell. The evidence showed that the prisoner was belligerent in the shower
and attacked an officer, justifying the use of force to subdue him, including
the use of capstun. Subsequently, the prisoner's refusal to stop shouting
and banging on his infirmary cell door at 2 a.m. similarly justified the
use of force, including capstun. The appeals court further ruled, however,
that the prisoner alleged a viable excessive force claim against three
officers arising from their conduct in the shower room incident, in that
they purportedly kicked him in the ribs and punched him in the head after
he had stopped resisting and was prostrate on the ground with one officer
sitting on him. If true, this was conduct that a reasonable officer would
have known was improper. Giles
v. Kearney, #07-4140, 2009 U.S. App. Lexis 15597 (3rd Cir.).

A prison employee
who used a stinger grenade in the course of extracting a prisoner from
his cell was not entitled to summary judgment in an excessive force lawsuit
when several factors suggested that he used the grenade in a malicious
and sadistic manner rather than in a good faith effort to maintain or restore
order. The court suggested that, under the circumstances, cell entry, rather
than the use of the grenade, might have been a "viable" alternative.
The prisoner also created a factual issue as to whether a subsequent strip
search was carried out in a manner designed to humiliate him. Jackson
v. Geri, #07-cv-656,
2009 U.S.
Dist. Lexis 47508 (W.D. Wis.).

A prisoner could
not support his excessive force claim against one officer with the "fantastical"
claim that he had attempted to kill him by placing a lethal venomous white
tipped spider with white dots on its back in the cell. None of the other
alleged actions by any of the officers amounted to excessive use of force,
and the prisoner did not show that he suffered physical injuries, needed
medical attention, or that his supposed psychic injuries were caused by
the defendants' conduct. Browne v. San Francisco Sheriff's Dept.,
#C 03-0047, 2009
U.S. Dist. Lexis 40515 (N.D. Cal.).

Prisoner Discipline

An inmate could
not proceed with his federal civil rights lawsuit seeking damages because
his due process rights were allegedly denied during a disciplinary hearing
when the disciplinary conviction had not been overturned on appeal or otherwise
set aside, and when prevailing on his due process claim would necessarily
imply the invalidity of the disciplinary conviction. Thomas
v. Quarterman, #08-20812, 2009 U.S. App. Lexis 15244 (Unpub. 5th Cir.).

While a prisoner
was initially convicted of fighting, violent conduct, and creating a disturbance,
the two latter charges were reversed on administrative appeal. The prisoner
was ultimately sentenced to six months in a special housing unit solely
on the fighting charge that he had pled guilty to. As a result, any procedural
defects in the initial disciplinary hearing did not cause him any negative
consequences, so that he could not pursue a due process claim. Barnes
v. Henderson, #06-CV-6363,
2009 U.S.
Dist. Lexis 52730 (W.D.N.Y.).

While a prisoner
who suffered loss of good time credits following a disciplinary conviction
was entitled to due process, the record showed that he received all process
that was due, including notice of the charges against him, an opportunity
to present evidence and call witnesses, and a written decision, which was
supported by some evidence. A second disciplinary conviction did not result
in the loss of good time credits, but only disciplinary segregation and
loss of privileges, so that no viable due process claim was raised. Fiore
v. Lindsay, #08-4785, 2009 U.S. App. Lexis 13404 (Unpub. 3rd Cir.).

A prisoner's involvement
with an outside organization claiming to seek better treatment of prisoners
resulted in disciplinary convictions for lying, soliciting a staff member,
and engaging in a business or enterprise. He claimed that he was denied
due process in challenging these convictions, because he was not provided
with tapes or transcripts of calls between himself and his wife, which
he argued contained exculpatory information. The court rejected this claim,
noting that the prisoner could have submitted the same evidence through
his wife's affidavit. Brown
v. Schneiter, #08-3744, 2009 U.S. App. Lexis 12728 (Unpub. 7th Cir.).

Prisoner Transfer

A prisoner claimed
that his due process rights were violated when he was transferred to a
security housing unit based on a nurse's report of misconduct without a
disciplinary hearing. He further claimed that he was given the highest
security classification on the unit, resulting in loss of his job and inability
to participate in a rehabilitation group. Because placement in the security
housing unit did not involve an atypical and significant hardship in relation
to the ordinary incidents of prison life, no protected liberty interest
was involved in the transfer, and no due process claim was viable. The
transfer and loss of privileges also did not amount to an Eighth Amendment
violation, as there was no "deliberate indifference" by prison
officials and he did not suffer an "objectively serious" deprivation.
Johnson v.
Burris, #08-4321, 2009 U.S. App. Lexis 14958 (Unpub. 3rd Cir.).

Religion

A prisoner did not
establish a violation of his right to religious freedom. He did not show
how a requirement that he work on Sunday burdened his religious beliefs.
The court also rejected retaliation claims by the prisoner, since the prisoner
did not dispute that he disobeyed orders, which was the partial basis for
the misconduct reports filed against him. Chavis
v. Goord, #07-4787, 2009 U.S. App. Lexis 13681 (Unpub. 2nd Cir.).

Sex Offenders

Congress did not have
authority, under the Commerce Clause of the Constitution, U.S.
Const. art. I, § 8, cl. 3, or the Necessary and Proper Clause,
U.S. Const.
art. I, § 8, to pass 18
U.S.C.S. § 4248, under which the plaintiff former federal inmates
were to be subject to civil commitments as sexually dangerous persons.
The statute did not regulate interstate commerce and if upheld, would undermine
the "historic distinction" between federal authority and state
authority. The plaintiffs were therefore granted dismissal of the cases
seeking their civil commitments. U.S.A. v. Swarm, Civ.
#07-12061, 2009
U.S. Dist. Lexis 52550 (D. Mass.).

Sexual Assault

****Editor's Case Alert****

The state of Michigan
will pay a total of $100 million in settlement of a class action lawsuit
by over 500 female prisoners who said that they suffered sexual assaults
by prison guards. As part of the settlement, the state dropped an appeal
of two verdicts for 18 women, which totaled almost $24 million. The settlement
will be paid in six payments over five years. In the lawsuit, pending since
the 1990s, women claimed that guards in Michigan correctional facilities
sexually abused them, and that prison officials ignored reports by human
rights groups that included warnings that male officers were "preying"
on female prisoners. One of the named plaintiffs in the lawsuit stated
that she was raped eight times by prison guards during her incarceration
from 1993-1996. $28 million of the settlement will pay for lawyers' fees
in the case, and is reportedly for 30,000 hours of time. Bunton v. Dept.
of Corrections, Washtenaw County Circuit Court, Michigan, reported
in Detroit Free Press, July 16. 2009. To read a special report by
the newspaper's reporters on the lawsuit, click here.
In a January 2009 decision, the Michigan Court of Appeals upheld a $15.5
million award to 10 female prisoners concerning their sexual assault by
officers at Michigan's Scott Correctional Facility, and stated that the
defendants' arguments, raised on appeal, were "disingenuous,"
"fundamentally flawed" and "muddled," finding that
there was sufficient evidence" for the jury's award. In that case,
it was alleged that approximately 30% of the male staff at Scott were involved
in sexual assaults. A further appeal to the Michigan Supreme Court was
dropped as part of the settlement. Neal
v. Dept. of Corrections, #28532, 2009 Mich. App. Lexis 182 (Unpub.).

Prison lockdowns,
which allegedly resulted in the plaintiff prisoner being denied outdoor
exercise, were reasonable precautions in light of violence, including assaults
on staff members, that had occurred at the facility, so that defendant
prison officials were entitled to qualified immunity. Norwood
v. Vance, #07-17322, 2009 U.S. App. Lexis 15224 (2nd Cir.).

Female Prisoners:
"Mothers,
Infants and Imprisonment. A National Look at Prison Nurseries and Community-Based
Alternatives," Women's Prison
Association, Institute on Women & Criminal Justice. (May 2009).
According to the report, nine states have prison nursery programs in operation
or under development. The authors of the report state that "Prison
nursery programs keep mothers and infants together during the critical
first months of infant development, and the research shows that these programs
produce lower rates of recidivism among participating mothers." Between
1977 and 2007, the number of women in U.S. prisons increased by 832 percent.

Immigration:
2009
Immigration Detention Reforms (August 6, 2009). The U.S. Immigration
and Customs Enforcement agency (ICE) has announced a series of reforms
of the immigration detention system designed to "address the vast
majority of complaints about our immigration detention, while allowing
ICE to maintain a significant, robust detention capacity to carry out serious
immigration enforcement." These actions include creating an Office
of Detention Policy and Planning (ODPP) to design and plan a civil detention
system tailored to addresses ICE's needs. The ODPP will evaluate the entire
detention system in a methodical way, with seven areas of focus, each with
benchmarks for progress: •Population Management: To ensure the best location,
design, and operation of facilities reflecting the unique nature of civil
detention; •Detention Management: To ensure appropriate custodial conditions
and address day-to-day detention functions, including classification, discipline
and grievances; •Programs Management: To ensure the provision of religious
services, family visitation, recreation and law libraries; •Health Care
Management: To ensure the timely provision of medical, dental and mental
health assessment and services; •Alternatives to Detention Management:
To develop a national strategy for the effective use of alternatives to
detention including community supervision; •Special Populations Management:
To provide attention to women, families, the elderly and vulnerable populations;
and •Accountability: To ensure ICE employees perform the core functions
of detention oversight, detainee classification and discipline, and grievance
review. Other immediate actions include: •Discontinued use of family detention
at the T. Don Hutto Family Residential Facility in Texas. In place of housing
families, we will propose that the Texas facility will be used solely as
a female detention center. Presently, Hutto is used to detain families
and low custody female detainees. Detained families will now be housed
at Berks Family Residential Center in Pennsylvania. •Formation of two advisory
groups of local and national organizations interested in ICE's detention
system. These groups will provide feedback and input to the Assistant Secretary.
One will focus on general policies and practices, while the other will
focus on detainee health care. •Appointment of 23 detention managers to
work in 23 significant facilities - facilities which collectively house
more than 40 percent of our detainees. These 23 federal employees will
directly monitor the facilities and ensure appropriate conditions. •Establishment
of an Office of Detention Oversight (ODO) whose agents will inspect facilities
and investigate detainee grievances in a neutral manner. The ODO will be
part of ICE's Office of Professional Responsibility.

Prison Rape:
Prison Rape
Elimination Act Data Collection Activities, 2009 The Prison Rape Elimination
Act of 2003 (PREA) (P.L. 108-79) requires the Bureau of Justice Statistics
(BJS) to carry out, for each calendar year, a comprehensive statistical
review and analysis of the incidence and effects of prison rape. The Act
further specifies that the review and analysis shall be based on a random
sample, or other scientifically appropriate sample of not less than 10
percent of all Federal, State, and county prisons, and a representative
sample of municipal prisons. Nearly 8,700 facilities nationwide are covered
by the Act. BJS has developed a multiple-measure, multiple-mode data collection
strategy to fully implement requirements under PREA. Results of data collection
activities during 2008 and 2009: The Survey
on Sexual Violence (SSV) in Correctional Facilities collects data annually
on the incidence of sexual violence in adult and juvenile correctional
facilities. The National
Inmate Survey (NIS) gathers data directly from inmates on the incidence
of sexual assault in correctional facilities. In October 2009 BJS expects
to release the report entitled Sexual Victimization in State and Federal
Prisons as Reported by Inmates, 2008, which will provide prison rankings
as required under the Act. Jail rankings are expected to be released by
March 2010. The Former Prisoner Survey (FPS) provides national estimates
of the incidence of sexual victimization based on reports of former state
prison inmates. Results are expected to be released by January 2010. The
National Survey of Youth in Custody (NSYC) provides facility-level estimates
of youth reporting sexual victimization in juvenile facilities. Facility
rankings are expected to be released in a report by December 2009. 07/09
NCJ 227377

Training: "Technical
Assistance, Information, and Training for Adult Corrections,"
U.S. Dept. of Justice, National Institute of Corrections (NIC). Presents
the training programs, technical assistance opportunities, and information
services that NIC will provide for correctional executives and practitioners
working in all corrections disciplines in federal, state, and local adult
correctional agencies during fiscal year 2010, which begins on October
1, 2009.

Reference:

• Abbreviations
of Law Reports, laws and agencies used in our publications.